Romance Author Incites #cockygate with Trademark

June 5, 2018

A trademark dispute is really heating up between authors and intellectual property gurus over one writer obtaining a trademark for a word that is widely used in the romance genre – “cocky.”

The saga begins with Faleena Hopkins. She is the author of a 19-book series known as the “Cocker Brothers of Atlanta” or “Cocker Brothers, the Cocky Series.” Nearly all the titles in the series pairs the adjective “cocky” with a noun. For example, “Cocky Cowboy,” “Cocky Biker,” “Cocky Senator,” “Cocky Roomie,” and “Cocky Heart Surgeon” are some of her titles.

On September 12, 2017. Hopkins filed for two trademarks of the word “cocky,” FEDTM 5447836 and FEDTM 5458137, which she subsequently received. TM 5458137 is a work mark for the word “cocky” in specific font, but TM 5447836 is the relevant trademark at issue here and the one that has garnered so much controversy. The trademark covers a series of books, or downloadable e-books, in the romance category. The applicant, owner, and registrant of these trademarks is Hop Hop Productions, Inc. On her LinkedIn page, Hopkins is listed as the owner of Hop Hop Productions, Inc.

Upon receiving the trademark, Hopkins began sending cease and desist letters to several authors, including, T.L. Smith and Melissa Jane, who have renamed their co-authored book “Cocky Fiancé” to “Arrogant Fiancé”, Jamila Jasper—author of a separate novel named “Cocky Cowboy”, and “Mr. Cocky” author, Nana Malone.

As reported in the Macon Telegraph, Hopkins posted on Twitter the following rationale for trademarking “cocky”:  “I received letters from readers who lost money thinking they bought my series. I’m protecting them and that’s what trademarks are meant for.” The trademark covers any font style, size, or color.

On May 7, 2018, Kevin Kneupper, an author and attorney, filed to have the trademark cancelled. The Guardian reported a portion of Kneupper’s legal challenge, which states “as a competing author in the same field who has described characters in his books … as ‘cocky’ and who may use this word in … future titles”, the trademark is “causing injury and damage.”

Hopkins and Hop Hop Productions, Inc. subsequently filed suit against Kneupper, Tara Crescent, and Jennifer Watson for trademark infringement. Crescent, according to her website, is the author of another “Cocky” series of books that includes titles such as “Her Cocky Doctors” and “Her Cocky Firefighters”. The Guardian identifies Watson as a publicist for “Cocktales: The Cocky Collective,” (entered into evidence as Exhibit “A”)  a collection of short stories by different authors, apparently in response to the “cocky” trademark.

The trademark has all caused an uproar in the author community. The clash unfolded on social media under the hashtag #cockygate, but quickly turned from gags to gravity when author’s revealed the cease and desist letters that Hopkins sent. Twitter exploded with tweets about the issue from a number of romance authors (including New York Times and USA Today Bestseller Courtney Milan, who was a U.S. Supreme Court law clerk and then intellectual property law professor before beginning her career as an author), as well as at least one IP attorney who provided insight to those unfamiliar with trademark law.

In addition to cease and desist letters to some authors, others asserted she had reported their books to Amazon, which subsequently removed their listings from the biggest book seller in world. The Romance Writers of America trade association and Author’s Guild interceded on behalf of the authors whose works were removed, and Amazon responded, agreeing to not “remov[e] titles from sale until this matter is resolved” and reinstated books they had previously removed.

On May 25, 2018 Hop Hop Productions and Hopkins were successful in obtaining a preliminary injunction against defendants Crescent and Watson. Unfortunately for plaintiffs, the success was short-lived. On May 29, 2018, US District Court Judge Alvin Hellerstein dissolved the preliminary injunction citing “serious issues of fact and law that have to be decided before a preliminary injunction can be granted.” A hearing on the motion for a temporary restraining order or preliminary injunction occurred on June 1, 2018.

According to the Guardian, on June 1, 2018 Judge Hellerstein denied plaintiff’s request for a preliminary injunction and temporary restraining order which would have halted publication of books with “cocky” in the title. He reasoned that readers of these books were “sophisticated purchasers” who would not be confused by different authors’ books and found the trademark to be “weak”. Stay tuned for the outcome of the trademark infringement and cancellation, as discovery is on the horizon. Kneupper can continue his challenge of the “cocky” trademark in the title of a book series.

Image source: REUTERS

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